Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Draper v Commissioner for Fair Trading, Office of Finance, Services and Innovation. [2017] NSWCATOD 21 Hearing dates: 17 August and 17 October 2016 Date of orders: 08 February 2017 Decision date: 08 February 2017 Jurisdiction: Occupational Division Before: S Leal, Senior Member Decision: The decision of the respondent dated 13 May 2016 is set aside. In its place, the Tribunal orders that the applicant's individual contractor licence in the category of carpenter and joiner be varied to the category of general building work. Catchwords: Individual contractor licence in category of general building work – application for variation from category of carpenter and joiner – relevant industry experience in a wide range of building construction work – majority of experience to be within 10 years of date of application. Legislation Cited: Administrative Decisions Review Act 1997 Home Building Act 1989 'Qualification requirements for an endorsed contractor licence or supervisor certificate for general building work' - Instrument dated 5 January 2015 pursuant to section 33D(1) of the Home Building Act Cases Cited: Locking v Department of Finance and Services [2013] NSWADT 23 McDonald v Director General of Social Security (1984) 1 FCR 354 Category: Principal judgment Parties: Bradley Draper (Applicant) Commissioner for Fair Trading, Department of Finance, Services and Innovation (Respondent) Representation: Solicitors: B Draper (Applicant in person) Commissioner for Fair Trading, Department of Finance, Services and Innovation (Respondent) File Number(s): 1620138 Reasons for decision 1. On 14 July 2015, Mr Bradley Draper applied to vary his individual contractor licence from the category of carpenter and joiner to the category of general building work. 2. His application was refused by the Commissioner for Fair Trading ('NSW Fair Trading'), who is the respondent in this case, on the basis that Mr Draper did not possess the necessary industry experience required under the Home Building Act 1989 (NSW). NSW Fair Trading concluded that while Mr Draper had satisfied the approved qualification requirements for an individual contractor licence in the category of general building work he did not have 'at least two years' relevant industry experience in a wide range of building construction work, where the majority of that experience was obtained within 10 years of the date on which the application is made.' (as stipulated by the instrument dated 5 January 2015 and entitled 'Qualification requirements for an endorsed contractor licence or supervisor certificate for general building work', pursuant to section 33D(1) of the Home Building Act). 3. On 13 May 2016, this decision was affirmed on internal review by Fair Trading. 4. Mr Draper has sought a review on this decision. A hearing was held in this Tribunal on 17 August and 18 October 2016. For the reasons that follow, I have decided that Mr Draper's individual contractor licence in the category of carpenter and joiner should be varied to the category of general building work. The Issue to be decided 1. The primary issue before the Tribunal is whether Mr Draper can demonstrate that he has acquired two years' full time experience in carrying out the roles, duties and responsibilities required of a residential builder in a wide range of construction work. 2. In this case, the Tribunal is undertaking a review of the merits of the original decision. The role of the Tribunal is to make the correct and preferable decision having regard to the material before it, including any relevant factual material and any applicable written or unwritten law. It then affirms the original decision, varies it, or sets it aside and substitutes another decision. The Tribunal makes its own decision in place of that of NSW Fair Trading and there is no presumption that the decision of NSW Fair Trading is correct. (see McDonald v Director General of Social Security (1984) 1 FCR 354 at 357.) The applicable qualification and experience requirements 1. Relevantly, the Home Building Act ('the Act') sets out the licensing requirements in relation to the home building industry in New South Wales. 2. Section 19(1) of the Act provides that NSW Fair Trading may grant contractor licences for the purposes of this Act. 3. Section 21(2) of the Act enables an individual contractor licence to be varied on application by the holder of the licence. 4. An applicant must meet certain standards before a contractor licence can be issued. The standards are described in an Instrument dated 5 January 2015, which was made pursuant to section 33D(1) of the Home Building Act and which is entitled 'Qualification requirements for an endorsed contractor licence or supervisor certificate for general building work.' ('the Instrument'). The Instrument sets out the qualification and experience requirements for an endorsed contractor licence and supervisor certificate to do or supervise general building work. 5. NSW Fair Trading is satisfied that Mr Draper has the approved qualifications requirements for an individual contractor licence in the category of general building work. The issue in dispute concerns his experience. 6. Relevantly, the Instrument requires 'two years relevant industry experience in a wide range of building construction work, where the majority of that experience was obtained within 10 years of the date on which the application was made.' 7. The relevant 'experience' is defined in the Instrument as: "Experience" means experience gained by the applicant as: (a) an employee of; or (b) a person otherwise lawfully engaged by, the holder of a contractor licence authorising the holder to do the class of residential building work in which the experience was gained ("the Work"), where during the relevant period, the applicant was: (c) supervised and directed in the doing of the Work by the holder of an endorsed contractor licence or supervisor certificate authorising its holder to supervise the Work; and (d) financially remunerated for the Work;" 1. In the case of Locking v Department of Finance and Services [2013] NSWADT 239, the Administrative Decisions Tribunal considered a case whereby the issue of relevant industry experience in a wide range of building construction work was one of the issues examined. In her decision, Deputy President Hennessy observed that … experience in carpentry and joinery work is not the equivalent of "a wide range of building construction work" as required by the Instrument. A building contractor has the overall responsibility for a site and must be able to supervise all of the trades required to complete any type of dwelling. Additionally a builder must be able to determine that all trades have complied with all standards and requirements. …Those trades include flooring, bricklaying, stonemasonry, wet plastering, painting, decorating, general concreting, tiling, demolishing, fencing, glazing and waterproofing… A building contractor is also able to contract with the public.., and must therefore be able to negotiate a contract, quote for a project and co-ordinate the trades to be able to complete the project on time and within budget. He or she must also be able to negotiate and discuss the jobs with council and private certifiers to ensure that the work is passed fit when appropriate. Relevant Evidence 1. Mr Draper provided an affidavit outlining his building work experience, tendered submissions in support of his application and gave evidence at hearing before this Tribunal. Mr Peter Reynell also gave evidence at hearing. 2. Contained on file is a copy of Mr Draper's Certificate IV in Building and Construction (Building) which was issued to him on 28 May 2015. Peter Reynell 1. In oral evidence before the Tribunal, Mr Reynell confirmed that he has held a builder contractor licence since 1980. His current licence is not subject to renewal until 2019. 2. In a referee testimonial, Mr Reynell certified that Mr Draper has worked with him for financial remuneration 'on and off for 20 years in total' and has regularly undertaken the following activities: * applying building codes and standards to the construction process; * dealing with construction contracts and estimated costs; * preparing and evaluating tender material; * supervising the planning of construction work, managing construction work and risks, managing project quality; * managing business disputes, budgets, people performance and risk. Macmasters Beach (2006 – 2008) 1. Mr Reynell confirmed that from September 2006 to February 2008, he supervised Mr Draper on a residential development at Macmasters Beach. He agreed that Mr Draper had been involved in the following aspects of building work on this development: bricklaying, concreting, tiling, waterproofing and glazing. He agreed that Mr Reynell supervised all the tradespersons on site for the duration of the job. He told the Tribunal that Mr Draper was always able to be relied upon to direct tradespeople on site. He agreed that Mr Draper had shown council inspectors around the site and ensured that the building site was well maintained. Mr Reynell agreed that Mr Draper was responsible for the scheduling of work to include variations to building plans and to renegotiate the building contract to allow for such variations. 2. Mr Reynell confirmed that he had paid Mr Draper for his work and that he had supervised Mr Draper's work both in meetings on site and by telephone. Copacabana (1996-1997) 1. In his referee's statement, Mr Reynell also confirmed that between 31 August 1996 and 30 June 1997, Mr Draper was responsible for residential building work at Copacabana. Mr Draper had the following roles and responsibilities: General carpentry duties, building set out, supervising foundation excavation, supervising brickwork installing walls (including prefabricated windows), roof trusses and pitched roofs section of roof installing roof sheeting and ancillaries, installing timber floors internal carpentry fixout, installing pre-fabricated joinery and fabricating cupboards etc. installing timber decks. East Gosford 1. Mr Reynell confirmed that between 1 September 1999 and 30 November 2000, Mr Draper had the following roles and responsibilities on site at a multi-dwelling residential development at East Gosford: General carpentry duties/leading hand; interpret and apply architectural engineering and consultants plans and specifications, applying general structural principles, managing staff and sub-contractors, liaising with head contractor and client, management of the building process, applying building codes and general structural principles to medium density residential construction, preparing scopes of work and assisting in sub-contractor selection. Mooney Mooney 1. Mr Reynell confirmed that between 30 November 2000 and 31 July 2001, Mr Draper had the following roles and responsibilities on site at a residential building development at Mooney Mooney: General carpentry duties/site supervisor; interpret and apply architectural engineering and consultants plans and specifications, applying general structural principles, managing staff and sub-contractors, liaising with head contractor and client, management of the building process including quality control, applying building codes and general structural principles to medium density residential construction, preparing scopes of work and assisting in sub-contractor selection, management and control of budget requirements. Copacabana (2001 – 2002) 1. Mr Reynell confirmed that between 30 August 2001 and 31 July 2002, Mr Draper had the following roles and responsibilities on site at a residential building development at Mooney Mooney: General carpentry duties/site supervisor; interpret and apply architectural engineering and consultants plans and specifications, applying general structural principles, managing staff and sub-contractors, liaising with head contractor and client, management of the building process including quality control, applying building codes and general structural principles to medium density residential construction, preparing scopes of work and assisting in sub-contractor selection, management and control of budget requirements. Findings and reasons 1. On the evidence before me, I am satisfied that Mr Draper holds a Certificate 4 in Building and Construction (Building). On this basis, he satisfies the qualification element for the grant of an individual contractor licence in the category of general building work. 2. Mr Reynell provided oral evidence in relation to Mr Draper's relevant experience in a wide range of building construction work during the construction of a residential development at Macmasters Beach between September 2006 and February 2008, a period of no less than 16 months. I accept the veracity of Mr Reynell's evidence and accept the evidence that, during this time, Mr Draper was involved in the supervision of tradespeople in the areas of bricklaying, concreting, tiling, waterproofing and glazing. I also accept that he was responsible for tradespeople on site for the job, that he had responsibilities for managing council inspections around the site and that he negotiated variations to the building contact and work scheduling. 3. I also accept the referee statement prepared by Mr Reynell that between 30 August 2001 and 31 July 2002, namely a period of no less than ten months, Mr Draper was responsible for general residential building work on a residential development at Mooney Mooney. I am satisfied that in managing staff and sub-contractors and managing the building process generally, including quality control, Mr Draper had experience in a wide range of building construction work. 4. I accept that Mr Draper worked for Mr Reynell on other sites. I have not considered these further sites on the basis that only 24 months experience is required. This experience was demonstrated by Mr Reynell's supervision of Mr Draper on the 2006 – 2007 development at Macmasters Beach and the 2001- 2002 development at Mooney Mooney. On both occasions, I am satisfied that Mr Draper was an employee of Mr Reynell, that he was lawfully engaged by Mr Reynell who, at all times was the holder of an individual contractor licence in the category of general building work. I am satisfied that Mr Reynell supervised and directed Mr Draper in the work, for which Mr Draper was financially remunerated. 5. On the evidence before me and for the reasons set out above, I am satisfied that Mr Draper has 'at least two years relevant industry experience in a wide range of building construction work where the majority of that experience was obtained within 10 years of the date on which the application was made.' 6. In making this finding, I include the 16 months experience at the Macmasters Beach development, between September 2006 and February 2008, and the 10 months experience gained on the Copacabana development between 30 August 2001 and 31 July 2002. This is 26 months' experience, the majority of which was gained within 10 years of Mr Draper's application on 10 July 2015 for a variation of his contractor licence. 7. In reaching this view, I have taken into consideration the decision of Locking v Department of Finance and Services. 8. In conclusion, I am satisfied that Mr Draper has met the requirement for the issue of an individual contractor licence in the category of general building work. On the evidence before me, I am satisfied that the correct and preferable decision is that Mr Draper's individual contractor licence should be varied from the category of carpenter and joiner to the category of general building work. Orders 1. The decision of the respondent dated 13 May 2016 is set aside. In its place, the Tribunal orders that the applicant's individual contractor licence in the category of carpenter and joiner be varied to the category of general building work. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 February 2017